Quick disclaimers.  I am late to the news that Chuck Klosterman was designated the Ethicist for the NYT in June.  Also, this post is only tangential to estate planning.  However, in the interest of posting every day during Estate Planning Awareness Week, and in showing some love for Klosterman (one of my favorite contemporary writers), I thought I would mention one of his columns.

The question he addressed is whether a family should tell their mom whose greatest fear is suffering from Alzheimer’s that she has the disease.  Her doctor has only told her she has mild dementia but has told the family the true diagnosis.  Klosterman answered yes so that she can have final meaningful conversations with family members before the disease advances,  the same as she would if she were dying from cancer.  I concur with Klosterman.

In a piece of irony, in a recent Grantland column, he wrote that he  certainly would not be comfortable in a world where his worldview dictated reality.  Now, with his current position, he has the opportunity to make his worldview reality (and presumably increase his level of discomfort).

I mentioned this last year.  Huguette Clark was the reclusive Gilded Age heiress who lived the last 20 years of her life in a hospital under a fake name even though she owned various houses and apartments worth $150 million.  She also owned personal property (i.e. jewelry, art, furnishings) worth $75 million.  The story is noteworthy because at the age of 98, she finally executed a will which left most of her fortune to her distant relatives who she referred to as her heirs.  Once on a will signing roll, she executed another will six weeks later which left most of her fortune to charity. The distant relatives, who did not know where she lived, are contesting the second will.

Several points:

1.  The most recent will is presumed to be the valid will.

2.  The will can be challenged on the grounds of undue influence or her lack of mental capacity.  The mental capacity argument is probably a losing argument   If she were incompetent when she signed the second will, one would think that she was incompetent six weeks prior, too.

3.  A funded trust would have provided her privacy and kept Cincinnati estate planning attorneys/bloggers and the general public from knowing that she was worth $300 million.

4.  When a distant relative is a Gilded Age heiress, a Christmas card and occasional phone call provide a great return on investment.

Sad case that I intended to link last week.  A young woman was diagnosed with terminal brain cancer and eventually received a breathing tube. When she requested that the tube be removed so she could die, her parents sought guardianship of her.  A court found her competent to make her own decision and denied her parents’ request. In an odd turn of events, she changed her mind and kept the tube in place to preserve peace with her parents.

A few points:

1.  The case was correctly decided.  The parents had no right to interfere in the decisions of their adult child.

2.  If she had not been found competent, she would have been best served by having a health care power of attorney which designated someone who shared her beliefs to make her decisions.

3.  We all should have conversations with our family members so they know our wishes and how we wish they would respond to specific medical situations.  As tempting as it might be to get all potentially controversial topics on the table at once, save the conversation about differing views on religion, political candidates, and gay marriage for a different time

It is Estate Planning Awareness Week although every week is estate planning awareness week on this blog.  As part of that week, Forbes listed 6 things everyone should do before she dies.

1.  Make a will and/or trust.

2.  Make a living will and power of attorney.

3.  Review beneficiary designations for insurance policies and retirement plans.

4.  Make a bucket list,

5.  Find something good in every day.

6.  Tell friends and family you love them.

Of course, from my professional point of view, 1 and 2 are the most important.  When clients do that, my  list in 4 becomes attainable and 5 and 6 become easier.

After Davy Jones of the Monkees died in February, the probate court agreed with his executrix to make his will unavailable as a public document.  For most estates, though, wills are public records and can be viewed by anyone. The speculation about the privacy request centers around Jones’ marriage to a woman half his age which occurred 5 years after he made the will and possible financial problems he was suffering.  The widow has already filed a claim against the estate asking for the statutory share allowed for surviving spouses.

I doubt that his estate is proceeding as Jones would have wanted.  We can learn four lessons from Jones’ errors.

1.  The use of a funded trust avoids the probate process and provides privacy in administering estates abnegating the need to seal the will.

2.  When marrying for the second (or especially third time), a pre-nuptial agreement is essential so that spouses know what to expect and do not file claims against the estate.  It is hard to believe that Dennis Hopper got this, but Davy Jones did not.

3.  Estate planning documents should always be updated after marriage.

4.  As appealing as it sounds, it is never a good idea to marry someone younger than your children.

Mike, the smart Monkee, is probably aware of all of this.